[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Martin v Watson [1995] UKHL 25 (13 July 1995) URL: http://www.bailii.org/uk/cases/UKHL/1995/25.html Cite as: [1995] 3 WLR 318, [1996] AC 74, [1995] 3 All ER 559, [1995] UKHL 25

[New search] [Help]

[1995] UKHL 25

HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
JOHN LEONARD MARTIN (APPELLANT/PLAINTIFF) v. WATSON (RESPONDENT/DEFENDANT)

ON 6, 7, 8 JUNE, 13 JULY 1995

Before:

Lord Keith of Kinkel
Lord Slynn of Hadley
Lord Lloyd
Lord Nicholls of Birkenhead
Lord Steyn

LORD KEITH OF KINKEL

My Lords.

1. The background to the proceedings which give rise to this appeal is a long history of mutual antagonism between neighbours. The appellant plaintiff, Mr. Martin, and the respondent defendant, Mrs. Watson, lived next door to each other in Orpington. The garden of each dwelling abutted on that of the other. Relations between the parties and their respective spouses were acrimonious for many years, for reasons which need not be gone into. Eventually the defendant began to make accusations that the plaintiff had indecently exposed himself to her. The first time that she made a specific complaint about this was on 12 July 1988, when she called the police in, but after discussing the matter with them decided not to give a formal statement. She said that the plaintiff had exposed himself to her while standing on a ladder in his garden. In the course of her evidence in the present action the defendant said that the plaintiff had acted in similar fashion on a number of subsequent occasions. What gave rise to the present action for malicious prosecution was an alleged incident of indecent exposure which the defendant said occurred on 20 July 1989. She called in the police and a Police Constable Cratchley attended. The defendant told him that the plaintiff had appeared over the garden fence at about 5 p.m. He was standing on something behind the fence and was naked. He shook his private parts at her. Police Constable Cratchley reported back to the local C.I.D. and on the next day Detective Constable Haynes visited the defendant, who gave him a similar account. Detective Constable Haynes took a full witness statement at the end of which it was recorded that the defendant was prepared to attend court and give evidence about the contents of it. On 27 July Detective Constable Haynes took the defendant to the magistrates' court and obtained a warrant for the arrest of the plaintiff. The defendant was not required to take any part in the proceedings. Nothing further happened until 7 August 1989, when the defendant summoned the police in the person of a Police Constable McKiernan, and informed him that the plaintiff had again indecently exposed himself to her. Police Constable McKiernan took no action because he considered the nature of the defendant's allegation to be preposterous. On 9 August the defendant again called the police and made a further allegation of indecent exposure. Later that day the plaintiff was arrested and taken to the police station, where he was interviewed and bailed to attend court the next day upon a charge related to the events of 20 July 1989. He duly did so but the Crown Prosecution Service offered no evidence and he was discharged.
2. In the circumstances the plaintiff brought this action for malicious prosecution against the defendant in Bromley County Court. On 13 July 1992 Judge Goodman, after trial, gave judgment in favour of the plaintiff and awarded him damages of £3,500. The defendant was granted leave to appeal to the Court of Appeal, which on 21 January 1994 by a majority (Ralph Gibson and Hobhouse L.JJ., McCowan L.J. dissenting) [1994] Q.B. 425 allowed the appeal and set aside the judgment of Judge Goodman. The plaintiff now appeals, with leave given by the Court of Appeal, to your Lordships' House.
3. It is common ground that the ingredients of the tort of malicious prosecution are correctly stated in Clerk & Lindsell on Torts , 16th ed. (1989), p. 1042, para. 19-05:

'In action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly , that the prosecution was determined in his favour; thirdly , that it was without reasonable and probable cause; fourthly , that it was malicious. The onus of proving every one of these is on the plaintiff.'

4. Judge Goodman found that all four of these ingredients had been proved. It was not disputed on behalf of the defendant, either in the Court of Appeal or before your Lordships, that he was entitled so to find as regards the last three ingredients. But it was maintained that he was not entitled to find the first ingredient proved. The majority of the Court of Appeal agreed with that. The basis of the decision was that the defendant had not signed the charge sheet relating to the events of 20 July 1989. It is not entirely clear who did sign that charge sheet. It was either Detective Constable Haynes or the duty sergeant at the police station.
5. The question at issue is whether or not the defendant is properly to be regarded, in all the circumstances, as having set the law in motion against the plaintiff. Curiously enough, there appears to be no reported English decision dealing with the situation where the defendant in a malicious prosecution action has falsely and maliciously accused the plaintiff to a police officer of having committed an offence, with the result that a prosecution has been initiated by the police officer. A number of decisions in other Commonwealth countries have, however, considered such a state of affairs. In Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh (1908) 24 T.L.R. 884, an appeal to Her Majesty in Council from India, the defendant had falsely informed a police officer that the plaintiff had taken part in a riot, with the result that the plaintiff was prosecuted unsuccessfully, it being found that there had been no riot at all. The Judicial Committee of the Privy Council, on appeal by the plaintiff against the dismissal of his action for malicious prosecution, advised Her Majesty that the appeal should be allowed. Sir Andrew Scoble, giving the advice of the Board, said, at p. 884:

'If, therefore, a complainant did not go beyond giving what he believed to be correct information to the police and the police, without further interference on his part (except giving such honest assistance as they might require), thought fit to prosecute, it would be improper to make him responsible in damages for the failure of *81 the prosecution. But, if the charge was false to the knowledge of the complainant, if he misled the police by bringing suborned witnesses to support it, if he influenced the police to assist him in sending an innocent man for trial before the magistrate, it would be equally improper to allow him to escape liability because the prosecution had not technically been conducted by him.'

6. In Commonwealth Life Assurance Society Ltd. v. Brain (1935) 53 C.L.R. 343the plaintiff in an action for malicious prosecution had been charged with conspiring to defraud and committed for trial, though no trial actually took place because the Attorney-General declined to file an indictment. The charge was laid by a police officer acting on information supplied by the secretary of the defendant company, which offered to provide solicitors and counsel for the prosecution. A jury found that the defendant company had instigated the prosecution and had not genuinely believed that the prosecution was justified. Damages were awarded to the plaintiff. The High Court of Australia, on appeal from the Supreme Court of New South Wales, held that there had been evidence before the jury sufficient to justify its findings. Dixon J. said, at p. 379:

'The legal standard of liability for a prosecution which is instituted neither by the defendant nor by his servant is open to criticism on the ground of indefiniteness. It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority (Danby v. Beardsley (1880) 43 L.T. 603; Fanzelow v. Kerr (1896) 14 N.Z.L.R. 660). But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible (Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh; Black v. Mackenzie (1917) N.Z.L.R. 729). Further, the Privy Council has said in a judgment delivered by Lord Dunedin: - 'In any country where, as in India, prosecution is not private an action for malicious prosecution in the most literal sense of the word cannot be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. If that is done and trouble caused an action will lie.' Their Lordships, however, held in the case before them that, as the information supplied to the police was ample cause for the initiation of prosecution proceedings, the plaintiff must, in order to succeed in his action, go the whole way of showing that it was false to the defendant's knowledge (Balbhaddar Singh v. Badri Sah, The Times, 17 March 1926, a case containing dicta apparently inconsistent with the decision of this court in Davis v. Gell (1924) 35 C.L.R. 275). The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without *82 reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him.'

7. Watters v. Pacific Delivery Service Ltd. (1963) 42 D.L.R. (2d) 661 was a case in the Supreme Court of British Columbia. The plaintiff received delivery of some bottles of beer and in payment tendered to one Sandover, who had made the delivery, a cheque which by mistake was drawn on the wrong bank branch, which when the cheque was presented did not honour it. Sandover later called on the plaintiff with the cheque, and she altered it so as to show the correct branch, which, if the cheque had been presented, would have honoured it. Sandover never did present the cheque, but went to the police station and told an untrue story to one Detective Cotter. After some extraordinary events, which included Sandover identifying as a photograph of the plaintiff the photograph of a known prostitute and thief with a somewhat similar name, Cotter swore an information against the plaintiff charging her with obtaining the beer by false pretences. She was arrested and detained until released on bail. Later she appeared in the Police Court, when the Crown Prosecutor offered no evidence and the charge was dismissed. Munroe J. held that both Sandover and Cotter were liable to the plaintiff for malicious prosecution and awarded her damages. He said, at p. 669:

'Counsel for the defendant Sandover submitted that Sandover cannot be liable because he made no information on oath and that, therefore, the sole responsibility and liability for the prosecution of the plaintiff, if any, rests with the defendant Cotter, who swore the information. In short, it is said that the action against the defendant Sandover must be dismissed in any event because he did not institute or continue the proceedings. In support of that submission reliance is placed on a passage to be found in Salmond on Torts, 13th ed. (1961), p. 720. I reject this submission and hold that the defendant Sandover is liable because he instigated the proceedings that resulted in the arrest and imprisonment of the plaintiff, and did so maliciously and without reasonable cause. This is not a case of a person truthfully reporting the facts to a police officer and leaving the latter to determine whether or not such facts warranted prosecution. The bad faith of the defendant Sandover in deliberately deceiving Detective Cotter distinguishes this case from those cases relied upon by counsel for Sandover. In Sinclair v. Haynes(1857) 16 U.C.Q.B. 247, it was held that it was not necessary to prove that the defendant laid an information on oath; it is enough to show that he set the criminal law in motion.'

8. Finally, there is Commercial Union Assurance Co. of N.Z. Ltd. v. Lamont [1989] 3 N.Z.L.R. 187, a decision of the Court of Appeal of New Zealand. A building and contents belonging to the plaintiff were destroyed by fire, and he claimed on the Commercial Union under a policy he had with them. As a result of suspicions that the fire had been deliberately set voiced by a fire safety officer the police made inquiries of the Commercial Union, which sent the police some material from its files. That material was used in a prosecution of the plaintiff on a charge laid by the police of attempting to obtain money from the Commercial Union by false *83 pretences. The prosecution ended with a finding of no case to answer and the plaintiff sued the Commercial Union for malicious prosecution. A jury found in the plaintiff's favour, but on appeal by the Commercial Union the Court of Appeal of New Zealand set aside the verdict and ordered a new trial, on the ground that the trial judge had misdirected the jury as to the circumstances under which the Commercial Union could properly be held to have been the prosecutor of the plaintiff. The new trial was ordered because in the opinion of the majority of the court there was some evidence which, if accepted by a properly directed jury, might lead them to find that the Commercial Union was liable for instigation of the prosecution. Richardson J., after a full review of the New Zealand authorities, said, at p. 196:

'To summarise the New Zealand authorities. A defendant who has procured the institution of criminal proceedings by the police is regarded as responsible in law for the initiation of the prosecution. Expressions such as 'instigate,' 'set in motion' and 'actively instrumental in putting the law in force,' while evocative do not provide an immediate touchstone for the decision of individual cases. That requires close analysis of the particular circumstances. In the difficult area where the defendant has given false information to the police that in itself is not a sufficient basis in law for treating the defendant as prosecutor. That conduct must at least have inÍfluÍenced the police decision to prosecute.'

9. He went on to consider authorities in other jurisdictions, including Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh, 24 T.L.R. 884 and Commonwealth Life Assurance Society Ltd. v. Brain, 53 C.L.R. 343 and said [1989] 3 N.Z.L.R. 187, 199:

'It does not follow that there is any call for modifying the test which has been developed in the decisions of this court for determining whether a third party is responsible in an action for malicious prosecution for criminal proceedings instituted by the police. What is required is a cautious application of that test where the police have conducted an investigation and decided to prosecute. The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised as having procured the prosecution.'

10. McMullin J. also considered the authorities and, at pp. 207-208, expressed the opinion that three principles could be derived from them, the second of them being:

'As a general rule a prosecution will be considered to be brought when the information is laid and by the person who lays it. In the result, in prosecutions under the Crimes Act 1961, as was *84 Mr. Lamont's, the police will generally be treated as the prosecutor and no action for malicious prosecution will lie against the person on whose information the police have acted. But in some cases the person who supplied the information to the police may be regarded as the prosecutor even though the information was not laid by him. A person may be regarded as the prosecutor if, inter alia, he puts the police in possession of information which virtually compels an officer to lay an information; if he deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded; or if he withholds information in the knowledge of which the police would not prosecute. The matter was put in the following way by Isaacs A.C.J. in Davis v. Gell (1924) 35 C.L.R. 275, 282: 'For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position.' '

11. The American Law Institute, Restatement of the Law, Torts , 2d (1977), section 653, deals with the matter thus:

'When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this section even though the information proves to be false and his belief was one that a reasonable man would not entertain. The exercise of the officer's discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings. If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person giving false information. In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official's decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false.'

12. In the absence of any countervailing authority in the English courts, I am of opinion that the principles to be derived from the foregoing sources should be accepted as valid in English law. If a complainant himself signs a charge sheet or lays the information he will be regarded as in law the prosecutor even although he had no desire to bring the *85 prosecution but has been bound over to do so by a judge: Fitzjohn v. Mackinder (1861) 9 C.B.(N.S.) 505. The defendant in an action for malicious prosecution had sued the plaintiff for a debt in the county court. The plaintiff claimed a set-off, but the defendant produced a ledger which he claimed to contain an entry signed by the plaintiff to the effect that the debt claimed to be set off had been settled, though in fact the plaintiff's signature was a forgery. The county court judge disbelieved the plaintiff's evidence that the signature was not his and told him 'you stand committed for perjury.' He issued an order directing that the plaintiff be prosecuted for perjury and bound the defendant over to prosecute the plaintiff, which he did. The plaintiff was acquitted and sued the defendant for malicious prosecution. A jury found for the plaintiff and the Court of Exchequer Chamber, by a majority, held that the verdict was good. Cockburn C.J. said, at pp. 527-528:

'It is beyond dispute, that, independently of the order of the county court judge, the prosecution would under the circumstances have been malicious. Called upon to answer in damages for the injury inflicted by it on the plaintiff, the defendant, in order to avoid the consequences of a proceeding on the face of it otherwise clearly wrongful and actionable, seeks to protect himself by showing that he acted under the order of the county court judge. I am disposed to concur with my Brother Willes, who dissented from the majority of the court of Common Pleas, in thinking that it is not competent to the defendant to shelter himself under this order, seeing that the judge was induced to make it through his perjury and fraud. To suffer the judge to make such an order without informing him of the truth, and disabusing his mind of the error into which he had been led by wilful falsehood, was, as it seems to me, a fraud upon the judge, as well as a wrongful act towards the plaintiff: and I cannot bring myself to think that the defendant should be allowed to shelter himself under an order having its origin in his own falsehood, and issuing through his own fraud.

'The case of Dubois v. Keats (1840) 11 Ad. & E. 329, is an authority to show that the binding over in recognisances by a superior authority will not under all circumstances afford an answer to an action for a malicious prosecution. And, though it is true that in that case the defendant had by a malicious and unfounded charge before the magistrate intentionally procured himself to be bound over to prosecute, - a circumstance which does not exist here, - yet I think the same principle may well be applied where a man, by his own perjury and fraud, and by an abuse of the confidence of the court, has led to his being appointed to prosecute one whom he knows to be innocent, when by a disclosure of the truth he might at once have prevented such a result. I doubt, therefore, whether we ought not to go the length of holding that the defendant, who, seeing that this order to prosecute was about to result from his own fraud and perjury, did not disabuse the mind of the judge, must be responsible for the order itself, as much as though he had committed the perjury in order to procure it to be made.'

13. In that case the realistic view is that the prosecution was initiated by the county court judge, the defendant being only technically the prosecutor. But that did not enable the defendant to escape liability. It was his own perjured evidence which had caused the judge to bind him over to prosecute. The present case is in a sense the converse. The defendant did desire that a prosecution should be brought but was not technically the prosecutor. The circumstance that a defendant in an action of malicious prosecution was not technically the prosecutor should not enable him to escape liability where he was in substance the person responsible for the prosecution having been brought.
14. The mere fact that an individual has given information to the police which leads to their bringing a prosecution does not make that individual the prosecutor. In Danby v. Beardsley (1880) 43 L.T. 603, the defendant believed that two pairs of horse clippers which he had seen in his stables belonged to him. In fact they belonged to the plaintiff, who had lent them temporarily to the defendant's groom. The defendant having missed the clippers asked the groom where they were and the groom told him that they belonged to the plaintiff. However the defendant sent for a policeman, whom he told that he had had stolen from him two pairs of horse clippers and that they were last seen in the plaintiff's possession. The policeman found the clippers in the plaintiff's house and he was prosecuted but acquitted. The plaintiff's action against the defendant for malicious prosecution was withdrawn from the jury and that decision was upheld by the Court of Common Pleas, consisting of Lopes and Lindley JJ. Lopes J. held that there was on the facts no evidence that the defendant was the prosecutor. Lindley J. agreed, saying, at p. 604:

'I am of the same opinion. I have looked at the evidence with considerable care since the trial, and I see no evidence that the defendant was the prosecutor. It has been said that he so acted that he intended the constable to arrest the plaintiff, or, as it has been said, to use a common phrase, he set the stone rolling. Now what stone has he set rolling? It is simply a stone of suspicion. There was no direction to the constable to arrest or prosecute. He, no doubt, suspected Danby, and described the things to the constable; but there is not the slightest evidence that the defendant either prosecuted or directed anyone else to prosecute. With every anxiety to reconsider my ruling at the trial, I think the rule should be discharged.'

15. An important feature of that case is that there was no evidence of malice on the part of the defendant against the plaintiff. He genuinely believed that the clippers belonged to him, and he did not give the policeman any information which he knew to be false. Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted *87 by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.
16. In the present case Detective Constable Haynes, who took the defendant's statement and was responsible for obtaining a warrant for the plaintiff's arrest and drawing up the charge, was unable through illness to give evidence at the trial. So there is no direct evidence of the effect which the defendant's accusation had on his mind.
17. However, the trial judge said:

'The absence of evidence in this case from Detective Constable Haynes as to the history of the matter leading up to him obtaining the warrant is unfortunate and has made my task more difficult than it otherwise would have been. However, in the light of the defendant's further untruthful accusations about the plaintiff made to Police Constable McKiernan on 7 August and to another officer about an alleged incident on 9 August, when nothing seemed to be happening about executing the warrant, as well as her other wholly unfounded accusations to the police about earlier alleged incidents and her evidence generally, I consider that she was clearly determined that action should be taken and I am prepared to infer that that must have made such an impression on Detective Constable Haynes as to result in him applying for the warrant, notwithstanding the fact that the case depended on her word alone; and of course, as I have said, she was quite willing to give evidence and to accompany Detective Constable Haynes to the magistrates' court on 27 July to assist him in obtaining the warrant.

'In the circumstances of this particular case, therefore, I find that the defendant was indeed actively instrumental in setting the law in motion against the plaintiff. To hold otherwise would, I consider, be an affront to a proper sense of justice. She wanted the plaintiff to be arrested and dealt with from the start, and that is what she achieved in causing Detective Constable Haynes to obtain the warrant from the magistrate. She was, as I say, the only person who could testify about the alleged indecent exposure. I therefore find that the defendant is to be regarded as a prosecutor in setting the law in motion against the plaintiff.'

In my opinion the trial judge reached the right conclusion for the right reasons.

18. Mr. Munby, for the defendant, mounted a powerful argument to the effect that considerations of policy pointed against a decision in favour of the plaintiff in the present case. Such a decision, so it was maintained, would tend to discourage members of the public from bringing criminal activities to the notice of the police, lest they should find themselves harassed by actions of malicious prosecution in the event that the alleged perpetrator of the offence were acquitted. The logical result, if this argument were accepted, would be to stultify completely the tort of malicious prosecution since the rationale would apply not only to those giving information which resulted in a police prosecution but also to those who themselves signed the charge sheet or laid the information. There is no good ground here for making a distinction between persons who *88 procure a police prosecution and those who are technically prosecutors. It is said that victims of sexual assaults would be particularly discouraged from complaining. This, however, could not be so where the alleged perpetrator was a stranger to the complainant, and where the parties are known to each other a prosecution is unlikely to follow unless there is some evidence other than that of the complainant herself. Further, false accusations of sexual offences are by no means unknown, and there are many other types of offences of which a person may be falsely accused. It is to be kept in mind also that in actions for malicious prosecution the onus lies on the plaintiff to prove malice and want of reasonable cause. This would not be possible in the case of genuine complaints. It is suggested that adequate remedies for false accusations are available by way of prosecution for attempting to pervert the course of justice or wasting the time of the police, and also by way of prosecution for perjury if the complainant has actually given false evidence. But none of these remedies affords any compensation to a person who may have been arrested and imprisoned and perhaps subjected to the ordeal of a trial.
19. Analogies were sought to be drawn with the immunity afforded in respect of evidence given in a court of law, which extends also to statements made to solicitors engaged in preparation for pending proceedings: Watson v. M'Ewan; Watson v. Jones [1905] AC 480. No such analogy is, however, helpful. The essential feature of malicious prosecution is an abuse of the process of the court. If that has occurred it is immaterial that the abuse has involved giving evidence in a court of law. That was held in Roy v. Prior [1971] A.C. 470 in relation to an action for malicious arrest. A solicitor had procured the issue of a bench warrant in order to bring to court a doctor whom he wished to give evidence at the trial of his client. The solicitor gave evidence in support of the application for the warrant and when sued by the doctor for malicious arrest argued that the fact of his having given that evidence made the action unsustainable. This House rejected that argument. Lord Morris of Borth-y-Gest, at pp. 477-478, after alluding to the rule that no civil action lies against a witness for words spoken in court even if the evidence is falsely and maliciously given, said:

'This, however, does not involve that an action which is not brought in respect of evidence given in court but is brought in respect of an alleged abuse of process of court must be defeated if one step in the course of the abuse of the process of the court involved or necessitated the giving of evidence. It must often happen that a defendant who is sued for damages for malicious prosecution will have given evidence in the criminal prosecution of which the plaintiff complains. The essence of the complaint in such a case is that criminal proceedings have been instituted not only without reasonable and probable cause but also maliciously. So also in actions based upon alleged abuses of the process of the court it will often have happened that the court will have been induced to act by reason of some false evidence given by someone. In such cases the actions are not brought on or in respect of any evidence given but in respect of malicious abuse of process (see Elsee v. Smith (1822) 2 Chit. 304).'

20. Lord Wilberforce, after observing in relation to the immunity of witnesses that the trial process afforded some protection against malicious or untruthful evidence by way of cross-examination and confrontation with other evidence, said, at p. 480:

'But none of this applies as regards such evidence as was given in support of the application for a bench warrant. It was given ex parte: Dr. Roy had no means, and no other party any interest, in challenging it: so far from the public interest requiring that it be given absolute protection, that interest requires that it should have been given carefully, responsibly and impartially. To deny a person whose liberty has been interfered with any opportunity of showing that it was ill founded and malicious, does not in the least correspond with, and is a far more serious denial than, the traditional denial of the right to attack a witness to an issue which has been tested and passed upon after a trial. Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest. So checked, the present case provides no justification for protecting absolutely what the solicitor said in the court. I need not add that I am not prejudging in any way whether what he said was well founded or lacking in malice. That is for the action to decide.'

21. Similar considerations apply to statements made to the police under circumstances where the maker falls to be regarded as having in substance procured the prosecution. There is no way of testing the truthfulness of such statements before the prosecution is brought. To deny any remedy to a person whose liberty has been interfered with as a result of unfounded and malicious accusations in such circumstances would constitute a serious denial of justice.

My Lords

22. For these reasons I would set aside the order of the Court of Appeal [1994] Q.B. 425and restore the judgment of Judge Goodman. The defendant must pay the plaintiff's costs in the Court of Appeal. The defendant was legally aided before your Lordships' House but the plaintiff was not. The plaintiff will be entitled to his costs here against the legal aid fund, subject to the usual opportunity for objection.

LORD SLYNN OF HADLEY.

My Lords

23. For the reasons given by my noble and learned friend, Lord Keith of Kinkel, I, too, would allow this appeal.

LORD LLOYD OF BERWICK.

My Lords

24. I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Keith of Kinkel, and for the reasons he gives I, too, would allow the appeal.

LORD NICHOLLS OF BIRKENHEAD.

My Lords

25. I have the advantage of reading in advance a draft of the speech of my noble and learned friend, Lord Keith of Kinkel. For the reasons he gives, with which I agree, I also would allow this appeal.

LORD STEYN.

My Lords

26. I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Keith of Kinkel, and for the reasons he gives I, too, would allow the appeal.

REPRESENTATIONS:

Robert Sherman and Jonathan P Rose (instructed by Wellers, Bromley) for the appellant

James Mumby QC and Richard Christie (instructed by R.Burton & Co Anerley) for the respondent